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INSIGHT: The Do and Do Nots of Giving References

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An employee asks you for a reference, or a reference request lands on your desk – what do you do if the person in question has not been a model employee?  If you’re asked why he is leaving your employment? What is his sickness record? Or are there any concerns re disciplinary actions and other employees? - remember it’s worth taking stock and taking time before you begin and only then begin filling out the relevant details in accordance with company policy, in other words don’t let personal feelings get in the way.

Key things to remember are:

  • A reference should be true, accurate and fair
  • Businesses providing a reference owe a duty of care to the recipient and the subject matter
  • Personal information and potentially sensitive personal information must comply with data protection particularly if they contain details of sickness absence
  • If organisations promise a reference as part of a settlement agreement it is sensible to add provision allowing the employer to refuse if information is gained after the settlement which changes the opinion of the employee
  • If in doubt you do not have to give a reference – and this can speak volumes.

One recent case highlighted this.  In AB v Chief Constable a police officer of 24 years resigned after a period of long term sickness, but before he left disciplinary proceedings were issued against him.

It was police practice at this time to provide standard references.  The regulatory body he was going to work for asked for AB’s sickness and disciplinary history but were issued with the standard factual reference.  The Deputy Chief Constable decided to send information on AB’s disciplinary hearing and sickness records to the new employer, but sent AB a copy first.  AB objected to the second reference and served the police with a notice under section 10 of the Data Protection Act 1998 stating it was unlawful as it contained sensitive personal information.  He also instigated public and private law claims against the police.

The police argued they had a duty to inform AB’s new employers and correct misleading information in the first reference with a second one.  T

The High Court however decided that the duty of care imposed on the police did not require a second reference, even though the first one was inadequate.  Data Protection was the duty here and the police had a specific duty to AB, who had been led to believe a standard reference would be provided.

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Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.

Written by Susan Mayall


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